16 Fla. L. Weekly Supp. 731a
Online Reference: FLWSUPP 168 BROWN
Insurance — Personal injury protection — Attorney’s fees — Expert witness fees — Where medical provider’s attorney’s fees expert testified that he expected to be paid for his services and that he found performing those services to be burdensome, and insurer did not provide court basis to reject that testimony, award of expert witness fees was required even though case settled shortly after it was filed — Where compensation for attorney’s travel time was not objected to below, issue was not preserved for review
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. HALLANDALE BEACH ORTHOPEDICS a/a/o Linda Brown, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 07-22211 CACE 13. L.C. Case No. 07-6432 COCE 50. May 11, 2009. Counsel: Thomas L. Hunker, Miami. Amir Fleischer, Fort Lauderdale. Joseph Littman and Harley Kane, Boca Raton.
OPINION
(JACK TUTER, J.) The Appellant argues that the trial court abused its discretion in awarding expert witness fees in this PIP case, which settled shortly after it was filed. Travieso v. Travieso, 474 So.2d 1184 (Fla. 1985), the leading case on compensation of attorneys’ fee experts, has been construed as requiring the award of such fees when the testifying attorney expects to be compensated for his testimony. Straus v. Morton F. Plant Hospital Foundation, Inc., 478 So.2d 472 (Fla. 2d 1985); Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995).
The expert in the instant case testified that he expected to be paid for his services. He also testified that he found performing the services to be burdensome. Appellant’s counsel neither presented evidence refuting that testimony nor cross examined the expert on those assertions, to provide the court a basis for rejecting the testimony. Appellee’s expert testified that he had spent four and a half hours the day of the hearing coming to testify; and the court found that the expert was a “trendsetter in the PIP arena.” Therefore, there is record evidence from which the court could have concluded that a premier attorney, in the relevant field of the litigation, could appropriately consider losing a half of a day’s work to be burdensome, and expect to be paid for his expert services.
Since plaintiffs in PIP cases are often required to provide expert testimony to prove the reasonableness of their rates and time spent, even in cases that were settled quickly, the sheer volume of cases requiring such testimony militates against other attorneys donating their time as a “matter of professional courtesy.” See Travieso. The transcript of the attorney’s fee hearing in this record reveals that, although reviewing the actual case file only took the expert a half of an hour, he had also spent another hour and a half reviewing three other files against the same defendant at the same time. The record shows that witness was probably going to have to come to court to testify in each case separately. It defies reason to expect other attorneys to abandon their own practices for a few hours at a time on multiple occasions to provide their services free of charge. The appellee, as a very frequent litigant in both the county trial courts and the appellate divisions of the circuit court of this county, is well aware of the volume of PIP litigation that requires the testimony of attorneys’ fees experts, and the time that such experts have to expend in providing such testimony. The court notes that the appellee’s purported expert did not testify how much time she expended reviewing the file and appearing in court, or that she was providing her services free of charge as a professional courtesy.
Finally, while the appellant’s brief raises the question of plaintiff’s expert being compensated wrongfully for his travel time, appellant’s counsel failed to raise that objection in the trial court below. Therefore, that issue was not preserved for review. Noel v. Broward General Medical Center, 725 So.2d 438 (Fla. 4th DCA 1999) (specific costs objected to must be identified in order to preserve the issue for review).
Therefore, the trial court’s order granting expert witness fees is AFFIRMED. Appellee’s Motion for Appellate Attorney’s Fees and Costs is GRANTED. Upon proper motion, the trial court may determine the amount of those fees and costs.
